HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.19472 OF 2012 Date:02.06.2014 Between:
Smt. P. Surya Kumari .. Petitioner And The Assistant Director, Survey and Settlements, District Collector’s Office, Visakhapatnam, Visakhapatnam and others .. Respondents HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.19472 OF 2012 ORDER:
Heard learned counsel for petitioner, learned Government Pleader for Revenue appearing for respondent Nos.1 and 2 and Sri V.V.N. Narasimham, learned counsel for respondent No.3.
The present writ petition is filed by the petitioner alleging inaction on the part of the 1st respondent in considering the petitioner’s representation, dated 07.10.2010, for conducting survey of land in Survey No.19/2 of Chinna Waltair, Visakhapatnam, by demarcating the property claimed by her. A copy of the said representation is produced as Ex.P1, which is followed by a further representation dated 18.07.2011 – Ex.P5. The petitioner claims that she is the owner of the property and while proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 were pending with the aforesaid land, the said Act itself has since been repealed and therefore the petitioner was given an endorsement by the competent authority that all proceedings pending stand abated in terms of the repeal Act. The petitioner, however, claims that as per the said endorsement, out of a total extent of Acs.4.60 cents, an extent of Acs.2.30 cents situated towards North fell to the share of Sri Pampana Rama Murthy, father of the petitioner, and the Urban Ceiling Authorities claim that the land to an extent of Acs.2.30 cents already exists since that part of the land is covered by the road, which was laid by Visakhapatnam Urban Development Authority (VUDA), is stated to be with the Government Department and such is not affected by the repealed Act. A copy of the said endorsement of the Special Officer, Urban Land Ceiling, Visakhapatnam, bearing No.GE1/6/06 & 7/06/B2, dated 09.06.2009, is produced as Ex.P6. In view of the same, the petitioner seeks survey of the said land so as to primarily ascertain whether the said road portion as claimed by the petitioner is covered by the Urban Land Ceiling Act or not and as stated above alleging inaction, the present writ petition is filed.
Initially, this Court allowed the writ petition by directing the respondents to conduct survey of the said land after giving notice to all the parties and after considering objections, if any. The said order, however, was questioned by a third party in W.A.No.1149 of 2012 primarily on the ground that the petitioner has suppressed the pendendy of two suits in O.S.Nos.790 and 1689 of 2004 with regard to the very same land pending before the II Additional Senior Civil Judge, Visakhapatnam. The said writ appeal was allowed by order dated 26.09.2012 and the appellant was impleaded as respondent No.3 by giving liberty to file a counter and to contest the writ petition.
The 3rd respondent filed a detailed counter disputing the petitioner’s claim of title and possession and according to him, the petitioner had earlier accepted that the said portion may be taken up for laying the road and the dispute to the extent of the said two suits also now transpires that the suit filed by the 3rd respondent is dismissed for default, whereas the suit filed by the petitioner was decreed. However, the said decree appears to be an ex parte decree. The 3rd respondent, as a party, has taken steps for setting aside the said ex parte decree and the matter is stated to be pending at that stage. The 3rd respondent also states that he has taken steps for restoration of his suit and in addition, learned counsel for both the parties agreed that another suit by another third party filed for declaration is also pending before the District Court.
The counter affidavit filed by the 3rd respondent therefore seriously disputes the claim of title and possession as made by the petitioner. However, in my view, adjudication into these aspects would go beyond the scope of the present writ petition.
It is evident from the narration of the facts aforesaid that primarily disputes between the parties appear to be with reference to the road portion existing in the said land and particularly as to whether the said road forms part of the land, as claimed by the petitioner, or is outside the same. Such an issue therefore requires an appropriate survey to be conducted and only thereafter the physical location of the said road portion can be ascertained. The petitioner’s request for conducting survey as mentioned above, therefore would not cause any prejudice to the 3rd respondent also and inasmuch as all the neighbouring landholders would be given appropriate notice by the Surveyor before conducting the survey and all the parties can remain present and participate in the said survey, which will only help in localising the said road portion. Apart from the opportunity to participate in the survey after notice, the 3rd respondent and any other objector would also be entitled to file their objections to the survey report and survey report by itself is not conclusive and would depend upon the adjudication with reference to the objections thereon. As the situation exists as on today, the petitioner’s suit for perpetual injunction stands decreed, whereas the 3rd respondent’s suit stands dismissed for default. Therefore, assuming that the ex parte decree is set aside in future and the 3rd respondent’s suit is restored in near future, the parties therefore get their appropriate relief and all the issues can be adjudicated.
In these circumstances, the writ petition is disposed of directing the 1st respondent to take necessary steps by issuing notices to the 3rd respondent and any other neighbour who is likely to be affected by conducting survey and proceed to take up the survey with reference to the land records and the work memos, if any, which would be filed by the parties and complete the said survey by serving copies of survey report to all the parties concerned. The parties who are aggrieved shall be free to seek appropriate remedies in accordance with law. There shall be no order as to costs.
The miscellaneous petitions, if any, pending in this writ petition shall stand closed.
VILAS V. AFZULPURKAR, J
02.06.2014 KH